A historic juncture for Senate

Is it truthful and fair to the parties, to our country, and to our people, to allow those abroad, those looking at the pyramids along the Nile, or shopping in the fashion houses of Paris, or riding the romantic gondolas of Venice, or deliberately hiding in the dark corners of the world while everyone here, everyone here in this hall is sweating it out?”

Retired Supreme Court Chief Justice Artemio Panganiban posed this question before the Senate impeachment court when he and three other retired Supreme Court justices were invited as amici curiae, or friends of the court, to weigh in on the interpretation of the constitutional provision on the threshold required to convict an impeachable official.

The Senate impeachment court invited the legal experts after Sen. Erwin Tulfo moved to revisit the ruling of Sen. Francis “Chiz” Escudero that 16 votes will be required to convict Vice President Sara Duterte in her ongoing trial. Escudero made the ruling on the first day of the impeachment trial in July, following his designation as presiding officer.

Panganiban and his fellow retired Chief Justices Hilario Davide Jr. and Reynato Puno held the same view that the two-thirds vote should not necessarily be based on all the 24 members of the Senate but on the senators who are actually able to participate in the impeachment trial.

Contextual interpretation

The three legal experts, who at various times led the highest court of the land, argued for the contextual interpretation of Article XI, Section 3(6) of the 1987 Constitution, which provides that no person shall be convicted in an impeachment case “without the concurrence of two-thirds of all the members of the Senate.”

“Meaningful adjudication requires active participation in the search for truth and fairness,” Panganiban said, pointing to the need for a “commonsensical interpretation,” not a literal reading, of the provision.

Davide, in his written position, said that when the Constitution mentioned two-thirds of all the members of the Senate, “it was presumed and assumed” that the word “members” refers to “living persons who are not suffering from any mental, physical or health conditions, which render them incapable of exercising their powers or performing their duties as senators, or who are prohibited to do so by reason of some legal restraints or impediments.”

“This is the spirit of the provision. It could not be otherwise. Any interpretation to the contrary would defy reason, logic, and common sense; tolerate an absurdity; and perpetuate an injustice,” Davide said.

All means all

Puno likewise called for a “contextual and functional” interpretation of the provision, noting that the Constitution used a fraction and not a fixed number. “If that is the intent, Article XI, Section 3(6) should have simply stated that the number of votes to convict is 16 period.”

But retired Supreme Court Associate Justice Adolfo Azcuna strongly argued that the two-thirds vote should be based on the full 24 membership of the chamber. “As long as they are members of the Senate, they constitute the denominator in computing the threshold of two-thirds because all means all,” Azcuna said.

Now that the amici curiae have spoken, will the senator-judges listen to their voices of wisdom, or will they heed their own counsel? After all, an impeachment trial is deemed “sui generis,” or a class of its own, with the Constitution giving the Senate the “sole power to try and decide all cases of impeachment.” Under this doctrine, as the three retired chief justices affirmed, the senators have the power to decide their rules, including how many votes would logically constitute two-thirds to convict.

Unique challenge

Necessarily, they must first confirm the status of the senators currently absent from the impeachment trial, who are facing charges or about to be charged for various offenses, before they could do the math. Sen. Ronald “Bato” dela Rosa has been in hiding since November last year to evade arrest by the International Criminal Court. Sen. Loren Legarda has been on an extended medical leave since Aug. 3, when she left for France. Senators Jinggoy Estrada and Rodante Marcoleta have been detained by the Sandiganbayan on nonbailable charges of plunder.

The Sandiganbayan had suspended Estrada from his function as senator, in accordance with the antigraft law. But it has yet to rule on the possible suspension of Marcoleta, who has formally asked the Senate impeachment court to recognize his vote.

The Senate stands at a historic juncture, faced with the daunting question of whether it should consider the letter of the law rather than its spirit. In meeting this unique challenge, the senator-judges must not forget that their most solemn duty is to judge whether or not the Vice President committed culpable violation of the Constitution as charged. To do this faithfully, they must let the evidence—rather than political affiliations—guide them in their verdict.